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* US Supreme Court in Jacobson v. Massachusetts…
But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
The case was about a vaccine mandate. The decision was handed down in 1905. If you want to read a fascinating thread on the history of anti-vaxxer legal issues, click here. It’s the best I’ve seen.
…Adding… Text message…
I’ve always thought of that 1905 decision as the “your right to swing your arms stops at the other guy’s nose” rule
posted by Rich Miller
Monday, Aug 30, 21 @ 8:51 am
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“…does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” I don’t see why that isn’t blindingly obvious.
Comment by Skeptic Monday, Aug 30, 21 @ 9:02 am
Thanks for sharing Rich.
Comment by OneMan Monday, Aug 30, 21 @ 9:04 am
=== There are manifold restraints to which every person is necessarily subject for the common good. ===
Common is the first part of Commonist, and we don’t want no commonism here in the US of A. /s
Comment by PublicServant Monday, Aug 30, 21 @ 9:10 am
So, no divine-given right to behave like a nitwit?
Bolshevik.
Comment by Flyin' Elvis'-Utah Chapter Monday, Aug 30, 21 @ 9:14 am
Thanks for posting this, Rich.
Recently, three anti-vax radio personalities have lost their battles with Covid. It’s avoidable. The risks and chances of hospitalizations or worse decrease with vaccinations. This cite and post by Rich shows the “political why” to the best medical way.
Comment by Oswego Willy Monday, Aug 30, 21 @ 9:18 am
If you believe in freedom then you must also believe in your duty to your fellow citizens.
To quote FB: Demanding rights without accepting responsibility isn’t freedom; it’s adolescence.
Comment by 47th Ward Monday, Aug 30, 21 @ 9:21 am
A similar case in Illinois in 1918 occurred. A Granite City school denied admission to a few students because they had not been vaccinated against smallpox. Hagler v. Larner, 284 Ill. 547 was the case in favor of the school district. Chief Justice Warren Duncan said “no child has a constitutional right to carry to others in school the loathsome disease of smallpox. Vaccination is now recognized as the only safe prevention of the spread of smallpox. It is approved by medical science generally and by governmental authorities throughout the civilized world.” The opinion also stated the purpose of vaccinations, which is to “not only arrest the spreading of the disease, but the prevention of fatalities among those who are actually exposed to the disease.”
Sound familiar?
Comment by Steve Rogers Monday, Aug 30, 21 @ 9:32 am
Thanks for the link to Michael Harriot’s thread; it’s brilliant.
Too bad those who need it most won’t read it.
Comment by JoanP Monday, Aug 30, 21 @ 9:43 am
“Demanding rights without accepting responsibility isn’t freedom; it’s adolescence.”
Also privilege and racism. Many who refuse to follow COVID mandates and rules scream law and order at people they want authority to crack down on, like undocumented Latin Americans. They spent the last half-decade screaming to lock up a former Secretary of State, for emails.
Comment by Grandson of Man Monday, Aug 30, 21 @ 9:48 am
What’s galling is the same people who argue “I don’t know what’s in it.” are ingesting everything else BUT the vaccine.
Comment by Jocko Monday, Aug 30, 21 @ 9:54 am
So we’re guessin’ you will throw this in our faces when we try to shift the anti vaxers to the effort to abolish DUI, seat belts, in door smokin’ etc.and other really fun stuff?
Boo
Comment by Annonin' Monday, Aug 30, 21 @ 10:00 am
Jacobson has an interesting history in the Supreme Court, it was an underlying basis for the infamous Buck v Bell decision that held forced sterilization was constitutional. Since then, Jacobson has been used in more traditional cases and non-traditional ones (approving random drug searches in schools).
Comment by Original Anon Monday, Aug 30, 21 @ 10:26 am
Great post and information so rudimentary it should go without challenge. Unfortunately, beyond the sad but expected ignorance and fear, this crisis has been aggravated by the malice and hypocrisy of a party for political gain.
Comment by Norseman Monday, Aug 30, 21 @ 10:27 am
Legally, there’s a decent argument to differentiate Jacobson from a mandate today for Covid (smallpox had a fatality rate of 30%). I suspect that is why the federal and state governments largely have outsourced the mandate to private business.
Comment by Original Anon Monday, Aug 30, 21 @ 10:30 am
===Legally, there’s a decent argument===
Nope.
Comment by Rich Miller Monday, Aug 30, 21 @ 10:32 am
Several of the justices in that case were also part of the majorities in Plessy v. Ferguson and Lochner v. New York, which are no longer, shall we say, “super precedents”.
Comment by Put the fun in unfunded Monday, Aug 30, 21 @ 10:38 am
===so rudimentary it should go without challenge===
Except that Ayn Rand and others promoted the idea of selfishness as a virtue, and much of that ideology crept into the mainstream, first as libertarianism, and since the Reagan revolution, conservatism itself. These are people who don’t want to be called selfish, so they’ve created a political ideology to hide behind and to justify their selfish behavior. It’s not America First, it’s Me First. It’s so-called Christians citing the prosperity gospel that perverts the teachings of Jesus Christ.
It sad and sick and wrong. And it’s spreading too fast to contain it.
To live in society we have a responsibility to others. That’s the social order as we’ve known it since our Constitution was drafted.
Comment by 47th Ward Monday, Aug 30, 21 @ 10:40 am
“small pox had a fatality rate of 30%”
You want to wait until this thing possibly mutates enough to reach that threshold?
No such thing as an anti-vaxer on a ventilator.
Comment by Flyin' Elvis'-Utah Chapter Monday, Aug 30, 21 @ 10:43 am
==What’s galling is the same people who argue “I don’t know what’s in it.” are ingesting everything else BUT the vaccine.==
Smokers with tattoos….
Comment by nunya Monday, Aug 30, 21 @ 10:45 am
“smokers with tattoos”
…holding a Big Gulp.
Comment by Flyin' Elvis'-Utah Chapter Monday, Aug 30, 21 @ 10:56 am
What 47th Ward said…..so well.
Comment by Sayitaintso Monday, Aug 30, 21 @ 11:15 am
“…holding a Big Gulp”
…while driving a car without wearing a seat belt.
Comment by Bourbon Street Monday, Aug 30, 21 @ 11:18 am
===while driving a car without wearing a seat belt===
And eating a Big Mac.
Comment by Rich Miller Monday, Aug 30, 21 @ 11:20 am
… after a night out at Billy Bob’s Bar and Grill.
Comment by West Side the Best Side Monday, Aug 30, 21 @ 11:30 am
“ smallpox had a fatality rate of 30%”
Polio has a paralysis rate of about 0.5% and requiring that vaccine was a no-brainer.
Mumps has a case fatality rate of about 1% and measles is 1-3%. COVID-19’s overall CFR in the US is 1.8%.
Comment by Narc Monday, Aug 30, 21 @ 11:40 am
A lot of “legally” hyperbole rolling around lately. State your case, cites required, or stop gaslighting us.
Comment by Norseman Monday, Aug 30, 21 @ 11:45 am
John Stuart Mill is arguably the most influential of all 19th century philosophers when it comes to personal liberties and protections from government. Of his writings, nonce speaks to his thoughts more than “On Liberty”.
From “On Liberty”:
“The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
Mill was mindful of “tyranny by the majority” yet he recognized the prevailing common interest and that individuals should not be allowed to cause harm to others in the exercise of personal liberty.
I would be willing to bet my life that none of these noobs that cry “freedoms and liberty” have heard of Mill or have read a single word of his writings even though they were heavily influential on the American concept as it developed, especially through the courts, in the 19th century.
Great post Rich.
Comment by JS Mill Monday, Aug 30, 21 @ 11:49 am
I don’t like censorship, but the radio, TV, and Internet personalities who are telling people not to get vaccinated are akin to the person yelling “FIRE” in a crowded theater.
Our freedoms must be limited when they endanger our fellow citizens–like driving drunk
What the anti-vaxxers seem to have lost sight of is that this pandemic is hurting America. It’s every American’s patriotic duty to stop it, any way we can. That includes manning up and getting vaccinated.
Comment by Streator Curmudgeon Monday, Aug 30, 21 @ 12:22 pm
Jacobson held that the vaccination for smallpox had a real and substantial relation to the protection of public health and safety. In today’s legal parlance, that may be akin to a rational basis test. The legal argument is whether the disease/illness is sufficiently deleterious that mandated vaccination is rational. It likely is for Covid, but the case is not as strong as it was with smallpox. The second potential issue is federal appellate courts have rejected substantive due process and religious freedom challenges to vaccination laws - but the Supreme Court has not addressed that intersection and has shown some concern when state power intrudes across rights.
Comment by Original Anon Monday, Aug 30, 21 @ 12:59 pm
== three anti-vax radio personalities have lost their battles with Covid. == One of the hidden dangers of being good at propaganda is believing it yourself.
Comment by Anotherretiree Monday, Aug 30, 21 @ 1:00 pm
===The legal argument is whether the disease/illness is sufficiently deleterious that mandated vaccination is rational.===
When we pass the 1918 pandemic in deaths, will that suffice?
Comment by Oswego Willy Monday, Aug 30, 21 @ 1:04 pm
=== The legal argument is whether the disease/illness is sufficiently deleterious that mandated vaccination is rational. ===
What is the death threshold between rational and irrational?
Even trying to make the argument that the basis for mandating a vaccine can change because of a reduced number of cases is ludicrous. That’s the purpose of vaccinations. Smallpox is non-existent now because of vaccinations.
Hopping around citing different examples as a justification to downplay mandated vaccinations overlooks the overarching point of the ruling.
Covid continues to harm our society and our economy because self-indulgent people (encouraged by the perfidy of a political party) don’t understand the principles of freedom.
Comment by Norseman Monday, Aug 30, 21 @ 1:43 pm
OW and Norseman, it is unclear where a court would draw a line for a sufficient rationale to force a vaccination. There has to be some legal limit or else you allow Buck v Bell (state has authority to forcibly sterilize). I suspect a Court would defer on Covid, but I also suspect the open nature of the question is why states have been hesitant to mandate vaccines.
Comment by Original Anon Monday, Aug 30, 21 @ 1:52 pm
===it is unclear where a court would draw a line for a sufficient rationale to force a vaccination===
https://www.nytimes.com/2021/08/12/us/supreme-court-indiana-university-covid-vaccine-mandate.html
Comment by Rich Miller Monday, Aug 30, 21 @ 1:57 pm
- Original Anon -
I don’t think I said it would or should.
Thanks.
Comment by Oswego Willy Monday, Aug 30, 21 @ 1:57 pm
- Original Anon -
I don’t think mandated vaccines, be it work or a university in Indiana… don’t think mandates have lost.
Schools, employment… they seem to be mandating.
Comment by Oswego Willy Monday, Aug 30, 21 @ 1:58 pm
A lot of folks are making excuses to not get vaccinated. That huge scary needle is terrifying. S/
Comment by Bruce( no not him) Monday, Aug 30, 21 @ 2:02 pm
=When we pass the 1918 pandemic in deaths, will that suffice?=
I think we already have. The CDC and WHO believe the world wide numbers, especially India and China, represent a large undercount.
Comment by JS Mill Monday, Aug 30, 21 @ 4:07 pm
Anti-vaxxers seem to know quite a bit more about what God wants and what the Constitution defends/dictates than they really do…doo.
Comment by Dotnonymous Monday, Aug 30, 21 @ 4:17 pm
===do…doo.===
Speaking of which, a noted side effect of Ivermectin is sudden, explosive diarrhea. Be careful out there people. Be sure you know where the bathrooms are when you’re out and about.
Comment by 47th Ward Monday, Aug 30, 21 @ 5:25 pm